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Long Island

As LI eminent domain use rises, resistance grows

"To muscle a person into selling their structure -- a home, a business, whatever it might be -- is wrong," said Jay Oberlender, 44, who is suing Hempstead to prevent the town from forcing him to sell his Elmont property. (Jan. 27, 2010) Photo Credit: Kathy Kmonicek

In a push to revive Long Island's downtowns and increase local tax bases, village and town officials increasingly are using the power of eminent domain to seize private properties from homeowners and small business owners to pave the way for developers to build retail, housing and other private projects.

The trend - noted by local planners, developers and officials as well as a national legal advocacy group that has studied eminent domain - picked up steam in the wake of a controversial U.S. Supreme Court decision in 2005 that upheld a government's right to seize private property for private development.

In at least 10 ongoing cases - from Hempstead to Babylon to Patchogue - local officials have condemned or threatened to condemn private properties for sale to developers who would build such projects as a supermarket, a hotel, condos and office buildings.

The aim, these officials say, is to eradicate blight, create jobs, spur economic activity and bring in more tax dollars.

While municipalities have long used eminent domain to seize land for public projects, turning property over to private developers has spurred criticism from those who equate that to a land grab.

"To muscle a person into selling their structure - a home, a business, whatever it might be - is wrong," said Jay Oberlender, 44, who is suing Hempstead to prevent the town from forcing him to sell his Elmont property, which is home to six businesses. The town wants the land for a developer to build a supermarket.

Planners, officials and builders, however, said negotiations between owners and developers to purchase land don't always work and eminent domain is necessary for progress.

"It can be a useful tool to get to the finish line," said Michael White, executive director of the Long Island Regional Planning Council.

Under both the New York State and United States constitutions, the government has the power to take an individual's private property provided the action meets two important criteria: It must be for a public use and just compensation must be paid.


'Public projects' expanding

Historically, governments have seized private land to build public projects such as highways, bridges, hospitals, schools and parks. The definition of public use has expanded: The 2005 Supreme Court decision, Kelo v. The City of New London, upheld by a narrow 5-4 vote the government's right to use eminent domain for economic development.

In reaction, 43 states passed laws restricting the government's power to seize private property for private development. New York was not among them.

"Merely to say we can get more taxes by taking Mr. Jones' property and selling it to Mr. Smith is certainly not an appropriate use of eminent domain, regardless of what the U.S. Supreme Court says," said Lee Koppelman, director of the Center for Regional Policy Studies at Stony Brook University and former executive director of the Long Island Regional Planning Council.

From 1998-2002, there were 146 known properties in New York State that were condemned or under threat of being taken over by local governments, according to a report issued by the Institute for Justice, a public interest law firm based in Arlington, Va. One year after the Kelo decision, that number jumped fivefold, to 734.

The report referred to New York as the "perhaps the worst state in the nation when it comes to eminent domain abuse."

"I think in some municipalities, the Kelo decision did make it easier to take land," said Westbury village Mayor Peter Cavallaro. "It probably opened their eyes to it as a more viable option."


At issue in Hempstead

In Hempstead, town officials have announced plans to seize private property if necessary for private development in projects in Elmont and Baldwin, and threatened to use eminent domain before the owner of the Courtesy Hotel in West Hempstead sold the building to a developer.

Eminent domain, Hempstead supervisor Kate Murray said, is a "last resort" move to abolish blight. "It is a tool but it is very much the last tool we would ever want to use," she said.

A $2-billion, mixed-use housing/retail project that might require the condemnation of 53 properties in the Village of Hempstead is expected to be revived this year.

Patchogue, which used eminent domain to complete two projects, is prepared to use that power again for a $130-million project in its downtown that would include a hotel and 240 rental units.

"You do it very cautiously. It's an invasion," Patchogue Mayor Paul Pontieri Jr. said. But, he noted, "Part of what we do is protect. Blighted buildings do nothing for the community."

In one completed project, the Copper Beech affordable housing development finished in 2007, the last obstacle was the Victorian house of George and Claudia DeFilippo. The couple didn't want to see their two-story home demolished as had others that had been tagged for condemnation and then sold. So they worked out a deal with village officials and the developer to have the 113-year-old house moved two blocks away.

Though the DeFilippos were happy in the end, their son Leonard said, he opposes eminent domain being used in that way.

"I still have this feeling that they're taking from the small guys so the big guys can make money, especially for development," Leonard DeFilippo said. "I'm so very, very much against that."

So are Oberlender and Tess Mittman, owner of the Argo Theatre that houses several businesses in Elmont. The pair is suing Hempstead Town for designating their properties as blighted, the first step in the condemnation process the town hopes leads to the building of a supermarket.


Dispute over 'blight'

Oberlender said he doesn't understand how Hempstead can declare his property blighted when there are six tenants operating there - a dental office, hair salon, printing shop, dry cleaner, real estate office and tax preparation service.

His property generates close to $65,000 in annual town and school property taxes, he said.

"I believe redevelopment, in and of itself, is a good thing," said Oberlender, who has owned his property for 11 years. "The question is the way they're going about it."

In Riverhead, town officials who took office in January pulled the plug on a proposed $120-million urban renewal project that called for the town to condemn 11 private parcels.

New Supervisor Sean Walter, who touted his opposition to eminent domain during the campaign, said he and the town board will work to encourage development - without using eminent domain.

"I don't believe it's the government's function to take one person's private property and give it to a developer for private use," Walter said. "It may be legal that you can do it, but it's really not proper."


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